Economy & Business

Why Is the Government Stealing Raisins from Honest Farmers?

(Amentorp/Dreamstime)
A case of silly yet sinister regulation run amok is heading to SCOTUS.

In oral arguments Wednesday, the Supreme Court will hear the government defend its kleptocratic behavior while administering an indefensible law. The Agricultural Marketing Agreement Act of 1937 is among the measures by which New Dealers tried and failed to regulate and mandate America back to prosperity. Seventy-eight years later, it is the government’s reason for stealing Marvin and Laura Horne’s raisins.

New Dealers had bushels of theories, including this: In a depression, prices fall, so a recovery will occur when government compels prices to stabilize above where a free market would put them. So FDR’s “brain trust” produced “price stabilization” programs by which the government would fine-tune the supply of and demand for various commodities. In 1949, this regulatory itch was institutionalized in the Raisin Administrative Committee. Today it wants the Hornes to ante up about $700,000. They could instead have turned over more than 1 million pounds of raisins — at least four years of their production.

They have been refusing to comply with a “marketing order” to surrender, without compensation, a portion of their production for the RAC’s raisin “reserve.” The Hornes say this order constitutes an unconstitutional taking.

The Fifth Amendment says private property shall not “be taken for public use, without just compensation.” Time was, “for public use” meant for creating things — roads, bridges, dams, courthouses — used by the general public. In 1954, “public use” was broadened to allow government to take property to combat “blight,” thereby enabling “urban renewal.” Then in the infamous 2005 Kelo decision, the Supreme Court held, 5-4, that government could seize a person’s private property for the “public use” of giving it to another private party that would, by developing it, pay more taxes to the seizing government.

Perhaps the phrase “public use” is now elastic enough to encompass the seizure of raisins for the purpose of combating the Depression that ended a while ago. Or for maintaining an “orderly” raisin market. The Supreme Court must decide whether the government has inflicted on the Hornes an uncompensated taking.

Takings Clause jurisprudence is quite recondite. The government, however, says two contradictory things. It says the Hornes “acquired” raisins and hence must either surrender a large portion of them — in some years, 47 percent — or pay huge fines. But it also says the Hornes do not have sufficient ownership of the raisins to raise constitutional objections.

The government says the Hornes voluntarily entered their raisins into the stream of commerce, so they must comply with the RAC’s raisin-reserve requirement. But the Supreme Court has hitherto rejected the idea that a person must give a portion of his property to the government in order to purchase the government’s permission to engage in a lawful business transaction, such as selling a commodity. The government says its required contributions to the raisin reserve merely regulates raisin sales. The Hornes say it is not a mere regulation, it is an expropriation.

The government says it owes the Hornes nothing in exchange for the raisins they supposedly owe it, because they somehow benefit from the government’s manipulation of the raisin market. The Hornes say it would be unconstitutional for the government to come on their land to confiscate their raisins or the proceeds from their raisin sales, so it is unconstitutional to fine them for not complying with an unconstitutional requirement.

Justice Elena Kagan has wondered whether this case involves “a taking or it’s just the world’s most outdated law.” The answer is: Both. The law has spawned more than 25 “marketing orders” covering almonds, apricots, avocados, cherries, cranberries, dates, grapes, hazelnuts, kiwifruit, onions, pears, pistachios, plums, spearmint oil, walnuts, and other stuff.

Government sprawl and meddlesomeness mock the idea that government is transparent. There are not enough cells in the human brain to enable Americans to know more than a wee fraction of what their government is up to. If they did know, they would know something useful — how much of what government does is a compound of the simply silly and the slightly sinister. The silly: Try to imagine the peril from which we are protected because the government maintains a spearmint-oil reserve. The sinister: The government is bullying and stealing property in order to maintain programs that make Americans pay higher commodity prices than a free market would set.

Progressives say, “Government is simply the name we give to the things we choose to do together.” That is not how the Hornes are experiencing government.

— George Will is a Pulitzer Prize–winning syndicated columnist. © 2015 The Washington Post

George Will — George Will is a Pulitzer Prize–winning syndicated columnist. His email address is georgewill@washpost.com.

Most Popular

Politics & Policy

Kat Timpf Chased Out of Brooklyn Bar

Fox News personality and National Review contributor Kat Timpf was forced to leave a bar in Brooklyn over the weekend after a woman she had never met became enraged upon learning she worked in conservative media. Timpf, who has twice previously been harassed while socializing in New York City, first described ... Read More
Film & TV

The Dan Crenshaw Moment

Given the spirit of our times, things could have gone so differently. On November 3, when Saturday Night Live comic Pete Davidson mocked Texas Republican Dan Crenshaw’s eye patch, saying he looked like a “hit man in a porno movie” — then adding, “I know he lost his eye in war or whatever” — it was a ... Read More
U.S.

The Present American Revolution

The revolution of 1776 sought to turn a colony of Great Britain into a new independent republic based on constitutionally protected freedom. It succeeded with the creation of the United States. The failed revolution of 1861, by a slave-owning South declaring its independence from the Union, sought to bifurcate ... Read More
Elections

Florida’s Shame, and Ours

Conspiracy theories are bad for civic life. So are conspiracies. I wonder if there is one mentally normal adult walking these fruited plains -- even the most craven, abject, brain-dead partisan Democrat -- who believes that what has been going on in Broward County, Fla., is anything other than a brazen ... Read More
Elections

There’s No ‘Neo-Jim Crow’ in Georgia

In the overtime of the 2018 elections, the Left can’t decide whether it opposes casting doubt on election results or insists on it. In the case of the Georgia gubernatorial election, narrowly lost by African-American activist Stacey Abrams, it’s unquestionably the latter. A cottage industry has grown up ... Read More